Salama v MIBP

[2016] FCCA 540

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALAMA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 540

Catchwords:
MIGRATION – Subclass 155 (Resident Return) visa – cancellation – review of decision of Migration Review Tribunal – whether notice of intention to cancel visa complied with the requirements of the Migration Act 1958 (Cth) – applicant’s description of relationship status – application dismissed.

Legislation:

Marriage Act 1961 (Cth), s.88D

Migration Act 1958 (Cth), ss.5F, 101, 104, 107, 108, 109

Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30
Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37
Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80; [1998] FCA 1552
WeiZhong v Minister for Immigration & Citizenship (2008) 171 FCR 444; [2008] FCA 507
Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60; [2004] FCA 1078

Applicant: MAHOUD MAHDY SALAMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 801 of 2015

Judgment of: Judge Smith

Hearing date: 15 February 2016

Date of Last Submission: 15 February 2016

Delivered at: Sydney

Delivered on: 18 March 2016

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin

Solicitors for the Applicant: Brett Slater Solicitors

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 801 of 2015

MAHOUD MAHDY SALAMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Egypt who first arrived in Australia on 17 March 2003 in order to marry an Australian citizen. He was married on 4 May 2003 and was granted a temporary visa on that basis. In spite of that marriage, the applicant returned to Egypt in 2004 and married an Egyptian woman. He had a child with his second wife and returned to Australia on 2 June 2005.

2. On 6 June 2006 the applicant was granted a permanent spouse visa on the basis of his relationship with his first wife. Several weeks later on 26 June 2006, he again returned to Egypt and did not return again until 6 June 2011. In the meantime, this Court made a divorce order in respect of the applicant and his Australian wife.

3. On 15 November 2012 the applicant made an internet application for a Resident Return visa. One of the questions in that application was “Relationship status”. The electronic form provided a drop-down box for the answer to that question in which there were a number of options. The options included, amongst others, “Divorced”, “De Facto” and “Married”. Only one option could be chosen. The applicant chose “Divorced”.

4. On 3 December 2012 the applicant was granted the Resident Return visa and returned to Egypt soon after. On 10 February 2013 the applicant’s Egyptian wife made an application for a partner visa on the basis that she was married to the applicant. She indicated that she had married him on 28 August 2004 and had had a daughter with him. The applicant returned to Australia on 19 October 2013.

5. On 8 August 2014 a delegate of the Minister sent the applicant a notice of intention to consider cancellation of his visa. The notice indicated that the applicant may not have complied with the obligation under s.104 of the Migration Act 1958 (Cth) to notify the Department of changes in circumstances (namely, the birth of his daughter). It also raised the possibility of a breach of s.101 of the Act to complete an application form in such a way that no incorrect answers are given or provided. In that respect, it relevantly stated:

   5. On 15 November 2012 you applied for a Return (Residence)(Class BB) visa. In this application you stated that your relationship status is “divorced”. … Due to the information … above I infer that (sic) you were married to [the applicant’s Egyptian wife] at the time you applied for your Return (Residence)(Class BB) visa and that your statement in this application about your relationship status is incorrect.

6. The notice included the following, under the heading “What you can do”:

   …

   You must provide your response in writing within 14 calendar days after you are taken to have received this letter.  …

   Note that if you do not respond within the above time frame, a decision on whether to cancel your visa will be made using information already held by the Department. If you do not intend to provide a written response within the period specified above, please advise this office in writing (to the address below) or by phoning me on [number omitted]. The issue of cancellation will then be considered.

7. The notice enclosed relevant extracts from the Act.

8. The applicant replied to the letter on 13 August 2014, saying that his relationship status was correctly stated in his visa application because his only marriage recognised under Australian law was that to his Australian wife and that had been terminated by divorce at the time of the application.

9. On 28 August 2014 the delegate made a decision to cancel the applicant’s visa under s.109 of the Act. The decision was partly based on the finding that, at the time of the relevant visa application, the applicant was in a de facto relationship with his Egyptian wife. That finding was, in turn, based on his Egyptian wife’s statements to the Department that she and the applicant had been living together for nearly 7 years and had three children together.

10. The applicant applied to the Migration Review Tribunal[1] for review of that decision. The applicant attended a hearing conducted by the Tribunal together with his first wife and another Australian woman to whom he was married in April 2014. The Tribunal gave its decision on 24 February 2015 affirming the decision to cancel the applicant’s visa.

    [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

The Tribunal’s decision

1. The Tribunal did not accept the applicant as a credible witness, describing his evidence as “flexible.” It found that he was legally married to his Egyptian wife under Egyptian law and, in response to the applicant’s assertion that his answer was correct because his Egyptian marriage was not recognised under Australian law, stated:

   [33] … the questions in the resident return visa application do not require the applicant to make an assessment as to whether their relationship would make [sic] satisfy various migration regulations. The visa application simply asks the person to nominate their relationship status as they see it. In the tribunal’s view, Mr Salama provided information on the resident return visa application that was at the very least misleading.

2. The Tribunal found that the applicant had not declared his correct relationship status as at the time of the visa application and so found that he had not complied with s.101 of the Act. It also found that, by failing to notify the Department of the birth of his first daughter, the applicant had not complied with s.104.

3. The Tribunal then considered whether to exercise the power to cancel the applicant’s visa and concluded that the visa should be cancelled.

Consideration

1. The applicant now seeks judicial review of the Tribunal’s decision. There are three grounds: the first is that the notice of intention to consider cancellation did not comply with the requirements of the Act and so the power to cancel the visa under s.109 never arose; the second ground is that the Tribunal was wrong to find that the applicant was married because his marriage to his Egyptian wife was not recognised for the purposes of the Act; the third ground is that the Tribunal erred by effectively requiring the applicant to “bring about an unlawful representation by representing his marriage status as he sees it.”

2. For the reasons that follow each of those grounds fails and the application will be dismissed.

Ground 1

1. Section 107 of the Act relevantly provides that, if the Minister considers that a visa holder who has been immigration cleared did not comply with sss.101 or 104, he or she may give the holder a notice:

   …

   (c)stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response – when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period – when the response is given; or

   (iii)otherwise – at the end of that period; and

   …

2. Section 108 of the Act provides that the Minister must consider any response to a notice under s.107 and decide whether there was non-compliance by the visa holder in the way described in the notice. If the Minister does decide that there was such non-compliance and has considered any response to the notice and anything else prescribed, he or she may cancel the person’s visa: s.109(1).

3. The applicant argues that the notice did not comply with sub-s.107(1)(c)(ii) which requires that it state that, if the applicant responds to the notice, the Minister will consider cancelling the visa “when the response is given”. Clearly enough, this last phrase means after the notice is given rather than immediately upon the giving of the notice.

4. While it is true that the notice did not replicate the words of sub-s.107(1)(c)(ii) in the body of the notice, it did comply with the obligation. The notice stipulated that any response had to be provided in writing within 14 calendar days of the day on which it was transmitted and that the written response “will also be taken into account”. In my view, that constitutes an unequivocal statement that, if the applicant gives a written response within the required period, the Minister will then consider cancellation. For that reason, the notice complied with s.107 and the ground fails.

5. If I am wrong about the statement in the notice, I find that the ground fails for another reason. Before dealing with that, I note that I do not agree that the notice can comply with s.107 simply by having a copy of that section attached to it. Section 107 permits the Minister to give a notice “stating” certain matters. The attachment of the section does not “state” those matters, but only indicates what such a notice must include.

6. The applicant relied on the judgment of Lander J in WeiZhong v Minister for Immigration & Citizenship (2008) 171 FCR 444; [2008] FCA 507 (“Zhong”) for the proposition that the giving of a notice which complies with s.107 of the Act is a statutory precondition to the exercise of the Minister’s, or delegate’s power to cancel the visa. I note in passing that his Honour Lander J supported that proposition by reference to two cases, neither of which concerned s.107: Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80; [1998] FCA 1552 and Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60; [2004] FCA 1078. Be that as it may, it was referred to with apparent acceptance, by the Full Court in Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30 at [54]. However, in that case, having referred to the decision in Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37, the Full Court went on to say:

   [61] In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice.

7. Admittedly, the Court in Brar did not consider precisely the same issue as that raised in these proceedings. However, in my view, the statement of principle in Zhong was not as comprehensive, as the applicant suggests. That is, it does not support the broader proposition that any non-compliance with the terms of s.107 will mean that the power to cancel under s.109 cannot arise. In light of that, s.107 must now be understood in light of the decision in SZIZO, an approach taken by the Full Court in Brar. In this case, that means that, even if there was non-compliance with s.107, the power to cancel still arose.

8. The purpose of the notice under s.107 is to give the applicant an opportunity to respond in writing to concerns held by the Minister about possible non-compliance with certain statutory obligations of visa holders. There is no suggestion here that the applicant was denied any reasonable opportunity to do so. In light of that, the alleged failure to comply with s.107 was trivial and insignificant.

Ground 2

1. This ground is based on the premise that the question in the visa application form (“relationship status”) was directed to the legal status of any relationship of the applicant at the time of the application. In particular, it focuses on the definition of “married relationship” in s.5F of the Act. The applicant argues that there was no such relationship at the time of the visa application.

2. The steps in the arguments are: first, the definition of “married relationship” requires that there be a marriage “that is valid for the purposes of this Act”; secondly, Part VA of the Marriage Act 1961 (Cth) determines validity of a marriage for the purposes of the Act; thirdly, s.88D (which is in Part VA) of the Marriage Act provides that a marriage is not to be recognised as valid if “either of the parties was, at the time of the marriage, a party to a marriage with some other person” which was recognised as valid; and finally, that at the time of his marriage to his Egyptian wife, the applicant was married to his Australian wife.

3. The argument fails at its basic premise. The application form did not ask whether the applicant was in a “married relationship” or not. It asked his “relationship status”. That is not a question determined by strict legal definitions but by practical reality. On the findings of the Tribunal, the applicant’s relationship status was not “divorced”. It was, and had been for many years, “married”. To suggest that a person, once divorced, can correctly describe his or her relationship status as “divorced” regardless of what other relationship(s) he or she might then be in may be clever, but it is wrong. This ground is rejected.

Ground 3

1. This ground relies on the same basic premise as the second ground, namely, that the application form required an answer to be made according to the legal status of a relationship. That premise is wrong for the reasons I have given in respect of ground 2 and this ground fails.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 18 March 2016